HKSAR v. CHOY KAM KUEN AND ANOTHER

DCCC 631/2021

[2022] HKDC 742

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 631 OF 2021

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REASONS FOR VERDICT

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Charges

1.  D1 pleads not guilty to the following charge:

1^st Charge (against D1 only)

Statement of Offence

Fraud, contrary to section 16A of the Theft Ordinance, Cap. 210.

Particulars of Offence

CHOY Kam-kuen, between the 15^th day of July 2015 and the 29^th day of July 2015, both dates inclusive, in Hong Kong, together with other persons unknown, by deceit, namely by falsely representing to YEH Shun-yiu that:

(i) World Link (Holdings)  International Enterprise Limited (“World Link”)  would help to arrange a loan for him;

(ii) in order to process the loan application, he had to pay $173,200 Hong Kong currency (“the administrative fee”)  upfront to the said CHOY Kam-kuen; and

(iii) if the loan application was unsuccessful, the administrative fee would be refunded to him in full amount,

and with intent to defraud, induced the said YEH Shun-yiu to commit an act or a series of acts, namely to first obtain an intermediary loan, and to pay the administrative fee to him, which resulted in benefit to himself and/or the said World Link, or in prejudice or a substantial risk of prejudice to the said YEH Shun-yiu.

2.  D1 and D2 plead not guilty to the following charge:

2^nd Charge (against D1 & D2 only)

Statement of Offence

Fraud, contrary to section 16A of the Theft Ordinance, Cap. 210.

Particulars of Offence

CHOY Kam-kuen and WAN Kin-ming, between the 23^rd day of November 2015 and the 30^th day of November 2015, both dates inclusive, in Hong Kong, together with other persons unknown, by deceit, namely by falsely representing to NG Wai-ping that:

(i) World Link (Holdings)  International Enterprise Limited (“World Link”)  would arrange a revolving mortgage for him;

(ii) in order to process the loan application, he had to pay $1,799,550 Hong Kong currency (“the said sum”)  upfront to the said World Link for settling his outstanding loans with Public Bank (Hong Kong)  Limited (“the outstanding loans”);

(iii) upon settlement of the outstanding loans, the loan application would be processed and completed; and

(iv) if the loan application was unsuccessful, the said sum would be refunded to him in full amount within 90 days,

and with intent to defraud, induced the said NG Wai-ping to commit an act or a series of acts, namely to first obtain an intermediary loan, and to pay the said sum to the said WAN Kin-ming as settlement of the outstanding loans, which resulted in benefit to themselves and/or the said World Link, or in prejudice or a substantial risk of prejudice to the said NG Wai-ping.

Prosecution’s evidence on 1^st Charge

3.  PW1 was the victim named in 1^st Charge.  He gives evidence in court.

4.  The defence do not dispute the prosecution case except that D1 had not been in contact with PW1 or seen each other until the identification parade where PW1 picked out D1 as the fraudster.    

5.  At all material times, PW1 and his wife were the joint owner of a flat in Shatin.  The flat was mortgaged to Hang Seng Bank.  They also took out loans from Hang Seng Bank, Dah Sing Bank, Bank of China and UA.  As at 15 July 2015, the day he was first contacted by the fraudsters, they owed the aforesaid lenders $502,700 in total. 

6.  On 15 July 2015, PW1 received a cold call from someone who claimed to be an employee of Bank of China.  That person offered to help him get a low-interest loan.  He showed interest in it.  That person asked him to bring his identity card, address proof and income proof to World Link at Room 612, 6/F, 30 Canton Road, Silver Court Tower 1, Tsim Sha Tsui for an appointment on 21 July 2015.

7.  On 21 July 2015, PW1 arrived at World Link.  The receptionist led him and his wife to a room (later marked as “Room E” on the sketch P10).  Inside was a male who gave his name card to PW1. The name card stated “Kenny Cheung, Financial Planning Officer of World Link”.  He claimed to be the manager and that his name was Kenny Cheung (“Kenny”).  Kenny was a bit chubby, wearing glasses and about 30.  PW1 and his wife sat down at the desk opposite Kenny. He was 3 feet away from Kenny.  Kenny said as follows:

(1) World Link was a subsidiary of Bank of China;

(2) World Link could arrange a low-interest loan for PW1;

(3) World Link could consolidate the loans of PW1;

(4) World Link could help PW1 apply to the Bank of China and other banks including Hang Seng Bank and Prime Credit for a second mortgage;

(5) PW1 could borrow $780,000;

(6) World Link would charge a handling fee of $200,000 for World Link;

(7) If the application was unsuccessful the fee would not be charged by World Link.

8.  PW1 agreed to these terms as he found them favourable.  Kenny asked him to sign a contract to facilitate him (Kenny)  to apply for the low-interest loan and to have it stated that if unsuccessful in the application the handling fee of $200,000 would be returned to PW1.  PW1 was not given a copy of the contract though he had asked for it.  Kenny said he would give it to PW1 later.  PW1 left.  This meeting lasted 30 – 45 minutes.

9.  After the meeting he received a phone call from Kenny telling him that he and his wife would have to go to a company called M Success Finance Company (“M Success”)  to borrow the money and he had helped PW1 to borrow the money.

10.  On 29 July 2015 he was taken to M Success in Mong Kok by two males who claimed to be World Link staff.  He signed the loan agreement (P1)  with M Success and got a cash cheque for $262,400 and a crossed cheque for $517,600. The two males brought him to cash the cheques.  He got $262,400 in cash and $517,600 into his account. The two males then brought him to the office of World Link.  Inside the same room (Room E)  he saw Kenny sitting across the desk from him.  Kenny asked for the handling fee of $200,000. PW1 hesitated because no application for the new loan had been made.  Kenny told him not to worry and gave him a rebate of $41,600, so PW1 only needed to give him $153,200 but there was an additional handling fee of $20,000.  PW1 gave Kenny Cheung $153,200, for which Kenny issued an invoice (P2).   PW1 also gave Kenny $20,000 for which there was no invoice.  Kenny told him to wait for the processing of the second mortgage application which would take one to three months.  This meeting lasted about 45 minutes.

11.  Afterwards, PW1 was unable to contact Kenny by phone or the office of World Link up to 7 September 2015.  He reported the matter to the police the same day.  The police went up to World Link but could not find Kenny.  Later the same day Kenny called PW1 and said it would take the banks one to two months to process. 

12.  PW1 asked the three banks on his own and learned that they had not received his application[1]. A few days later PW1 went up to World Link in the normal working hours but it was closed, no light was on and nobody was inside.  He made a report to the police.

13.  On 26 November 2015 the police arrested D1 at the office of World Link for the offence of conspiracy to defraud.  They seized, among others, a handwritten notebook (“Notebook”)  with contents like template scripts for making cold calls to offer to help flat owners apply for low-interest loans (P7[2])  as well as 26 employees’ pay slips (P17). 

14.  In his witness statement dated 2 April 2017, he estimated Kenny’s height as 1.67 – 1.7 m.  He himself is 1.78 m tall.  In a demonstration done barefooted in court, he is 2 – 3 cm shorter than D1.  (D1’s case, according to D1’s evidence in court later, is that D1 is 1.82 m tall.)    

15.  At a properly held identification parade on 14 February 2017 PW1 identified D1 as Kenny[3].

Prosecution’s evidence on 2^nd Charge

16.  PW2 was the victim named in 2^nd Charge.  He gives evidence in court.

17.  The defence do not dispute the prosecution case except that D1 and D2 had not been in contact with PW2 or seen each other until the identification parade where PW2 picked out D1 and D2 as the fraudsters.    

18.  At all material times, PW2 was the owner of 2 flats in Yuen Long.  The flats were mortgaged to Public Bank (Hong Kong)  Limited (“Public Bank”).  They also took out other loans from the same bank.  As at 23 November 2015, the day he was first contacted by the fraudsters, he owed this bank $2,040,000 in total[4].   

19.  On 23 November 2015 he received a call from someone who claimed to be Ms. Yuen of a company working with OCBC Wing Hang Bank promoting a property refinancing plan.  The terms were quite attractive.  He said he would consider it. 

20.  On 24 November 2015 Ms. Yuen called him again.  He said he was interested in it.  He provided her the particulars of his two flats for valuation.  She said she could help him apply to OCBC Wing Hang Bank for a new mortgage at a very low interest rate.  He agreed to go for it.  She asked him to go to World Link the following day with the necessary documents for processing.     

21.  On 25 November 2015 he went to the office of World Link.  The receptionist lady led him into a room about 60 – 70 sq. ft. where a male was seated.  PW2 sat down at about 3 feet opposite from him across the table.  He gave PW2 a name card in the name of KC Choy (“Choy”).  Choy was wearing glasses, with short hair, about 1.7 m tall and of medium build, and a bit strong.  PW2 gave Choy the necessary documents for the mortgage.  Choy said he could help PW2 get a mortgage for both flats with OCBC Wing Hang Bank for $2,100,000. PW2 could have $1,800,000 of it to redeem his mortgage with Public Bank and $300,000 of it for his own use.  The interest rate would be 1.8% per year whilst Public Bank had been charging 4.5% per year.  He agreed to take up this loan and asked Choy to arrange the matter for him.  Choy took PW2’s documents out of the room for photocopying.  He returned after a few minutes. PW2 was asked to sign some document which Choy said was proof he had been to World Link.  PW2 was not given a copy of it. The meeting lasted about half an hour from the time of PW2’s arrival at World Link to the time of leaving World Link.  This was the only occasion he had seen Choy until the identification parade on 14 February 2017 in which he picked out D1 as Choy. 

22.  On 26 November 2015 Ms. Yuen told PW2 on the phone that someone would inform PW2 to go to a law firm to deal with the new mortgage. 

23.  On 27 November 2015 he received a call to the effect that he was to go to a solicitors’ firm called “Au Tong Tsang” (“Au Tong Tsang”)  on 30 November 2015.

24.  On 28 November 2015 he received a call to remind him of the appointment of 30 November 2015.

25.  On 29 November 2015 Ms. Yuen called him again and told him the phone number of someone called “Mr. Lee” so that PW2 and Mr. Lee could meet up at Sheung Wan Station.  Mr. Lee would take PW2 to sign some documents at Au Tong Tsang.     

26.  On 30 November 2015, he met up with Mr. Lee at Sheung Wan Station.  Mr. Lee took him to Au Tong Tsang.  An employee of Au Tong Tsang brought him into a room.  Mr. Lee did not enter the room but waited outside on a sofa.  The employee asked him to sign some documents relating to his borrowing $1,800,000 from Shun On Finance Limited (“Shun On”).  He did not understand what was going on.  He called Ms. Yuen to enquire why he had to borrow money from a finance company.  Ms. Yuen told him that it was just a procedure for Public Bank to be repaid so that Public Bank could transfer his mortgage to OCBC Wing Hang Bank. He believed her and signed the document such as a loan agreement with Shun On. As he had to pay government levies of $450, he only got a cheque for $1,799,550.  Mr. Lee took him to the bank and asked him to take cash.  He called Ms. Yuen to enquire why cash was needed.  Ms. Yuen replied that cash would be quicker to clear his existing mortgage.  So he withdrew the sum in cash.  Mr. Lee took him to 14/F Attilio Building, 579 Nathan Road where Wong Ka Hing solicitors’ firm was.     

27.  Mr. Lee entered its conference room with him.  Already inside was a male, who looked twentyish, short and thin, sitting at the table.  According to PW2’s sketch drawn in court (P14), that male sat at the table opposite from PW2, at about 4 feet away.  Mr. Lee sat at the left-hand side of the table, about 8 feet away, also opposite from PW2.  They did not have to wait long until someone who he supposed to be the lawyer called Wong (“Lawyer Wong”)  holding a prepared document, which looked like a contract, entered the room. Lawyer Wong remained standing throughout at the right-hand side of the table, about 6 feet away, also opposite from PW2.  That male was between Mr. Lee and Lawyer Wong.  Lawyer Wong placed the documents on the table and explained the terms of the contract between PW2 and World Link, which were:

(1) PW2 needed to hand over $1,800,000 to World Link as proof of his asset to facilitate World Link to apply a mortgage for PW2;

(2) PW2 needed to hand over all relevant documents to World Link to apply for the mortgage;

(3) PW2 could not mortgage his two flats to others;

(4) It would take 90 days to do the mortgage for PW2, and if the mortgage could not be done in 90 days the $1,800,000 would be returned to him.

28.  At that juncture PW2 thought the name of the male was Tang Hoi Yuen William because that was the name of World Link’s representative as stated in the contract (“Tang”).  PW2 had not seen Tang’s identity card. 

29.  Lawyer Wong announced that Tang seated there was from World Link representing World Link to sign.  Then Lawyer Wong asked PW2 and Tang to sign the contract in 3 originals, which they did.  After that, Lawyer Wong also signed (P4).  Then PW2 placed the bag containing $1,800,000 cash on the table and pushed it across the table as Tang representing World Link and Lawyer Wong were on the other side of the table.  PW2 then left at the same time as Tang. They took the same lift down and then separated.

30.  Later PW2 called Ms. Yuen to tell her the money was given to Lawyer Wong’s office and he reminded her to do the mortgage as soon as possible.

31.  PW2 estimates that the duration from entering the office to leaving the office was 20 minutes.  He mostly looked at Lawyer Wong explaining the terms of the contract.  

32.  In cross-examination PW2 is reminded by defence counsel that D2 was actually 35 years old at that time.  He replies that maybe there is not much relationship between face and actual age.

33.  In cross-examination PW2 agrees that in his witness statement he described D1 as 1.7 m tall.  He is 1.68 m tall himself.      

34.  In cross-examination PW2 agrees with defence counsel that in his witness statements, including the last one which was given after his identification parade, whilst he described D1 as of “medium build”, he did not describe D1 as “a bit strong”.  However, he says in court that D1 was a bit strong.     

35.  At a properly held identification parade on 14 February 2017 PW2 identified D1 as Choy[5]. All participants were seated when PW2 walked along the parade. 

36.  In cross-examination PW2 is referred to his witness statement made on 27 April 2017 in which he described that Tang had long hair.  He explains in court that Tang’s hair covered the ear(s)  so that the ear(s)  could not be seen. Defence counsel shows him 2 photos of D2[6], allegedly taken in November and December 2015 respectively.  PW2 agrees that the 2 photos of D2 do not show long hair.  

37.  At a properly held identification parade on 19 April 2017 PW2 identified D2 as Tang[7]. He admits, though, that at the meeting he had not stared at Tang, he had not made special efforts to remember Tang’s face, and the impression was not very strong.  But he still had an impression of Tang in the identification parade. Among the seated participants, he saw D2’s gesture and pose of sitting, and also D2’s look, similar to Tang.  When he identified Tang he was sure it was the same person.  In re-examination he explains that he was sure he correctly identified Tang because despite the lapse of one year odd, he still had the impression of Tang. 

Defence case

38.  D1 and D2 each gives evidence.  There is no defence witness.

D1’s evidence

39.  He is 33 years old and 1.82 m tall.  He has a clear record.  He had never known or in contact with PW1, PW2, and D2.   

40.  I adopt the major part of D1’s counsel’s recital of his evidence in his Closing Submissions (paras. 16 – 22), subject to a few adjustments for better accuracy. 

41.  In 2009-2013, he worked in CSL as a salesman in a retail shop.  He came to know his colleague Naka or also known as Law Ho Chun (“Naka”)  who was also a salesman in the same shop.  Upon completing the contract with CSL, he was employed as a salesman in HKT in a retail shop in 2014.  Naka did not join HKT.  However, he and Naka maintained contacts with each other, and they continued to have dinners and swim together.  He left HKT after completing his contract with HKT in December 2014.

42.  In February 2015, he received a call from Naka.  Naka told D1 that he worked in the financial industry in a loan intermediary company, i.e. World Link.  Naka was its manager.  Naka asked if D1 was interested in working in the loan intermediary business.  As he was unemployed at that time, he would give it a try.

43.  Naka arranged for him to have a job interview before Naka’s boss Sam Hung, who offered to hire D1 to work as a junior clerk in a company called “Tengo” in Tsim Sha Tsui. 

44.  He started working in Tengo as a junior clerk in April 2015.  His monthly salary was only $8,000.  With such a small salary, his main job duties were to receive customers according to appointment schedule made by the manager, making copies of the customers’ documents (including identity card, address proof, income proof)  and to lead the customers to the financial planners in Tengo for further handling.  D1 handled about 4 – 5 customers per day.  There were 4 employees in Tengo.  They were Newton Lai the manager, Alex Lai and Eason Chan, both financial planners, and himself).

45.  After joining Tengo, he frequently met Naka for lunch.  They used to have lunch about twice every week.  They usually met up at World Link’s office, so Naka gave him the access code of World Link in case Naka was not in World Link’s office.  Naka’s office was at Room D.  He had met 2 of the staff of World Link during a social gathering with Naka.  One was Kenny Cheung, financial planning manager, 1.65m tall, fatter than he in 2015 (because in 2015, D1 was 20 pounds less than his current weight at 218 pounds), wearing glasses.  The other one was Ryan Chan, financial planning manager), also 1.65m tall, of a thin build, wearing glasses.

46.  On 25 November 2015, one day before his arrest on 26 November 2015, he had contacted Naka to have lunch the following day. 

47.  On 26 November 2015, he started working in Tengo at about 10 am.  He had no customer appointment that day.  At around 11:30 am, he left Tengo and walked about 15 minutes to the office of World Link.  In cross-examination by the prosecution he says that they would go to the food courts nearby, which would be very busy from before 12 pm.  

48.  When he arrived at World Link, he saw the lights were on but no one at the reception.  In cross-examination by the prosecution, he says that was quite unusual, maybe the first or second time only, as he had gone up there for about 50 times before.  He called Naka but the call did not get through.  He used the access code to get inside World Link.  It was silent inside.  Before entering Room E, he had walked past the open doors of other rooms and saw no one inside.  He reached Room E, the one nearest to the reception and usual room used for his wait, and sat down.  After some time, Naka called him and told him to wait in World Link. 

49.  At around 12 pm, he heard the bell in the office of World Link ring.  Eager to help Naka, he opened the door for 5 people to enter.  Upon entry he learned that they were police officers.  Later he was arrested and kept in World Link for an hour.  He did not see Naka return.

50.  On 27 November 2015 Naka called him.  He told Naka of his arrest.  Naka did not explain why he did not make lunch with him the previous day.  Afterwards they stopped contacting each other. 

51.  The prosecution put to him that he actually worked in World Link and was the one defrauding PW1 and PW2 at the office of World Link.  He denies that. 

D2’s evidence

52.  D2 has a clear record, now 42 years old.  He is married and has a child born in 2016. 

53.  After completing F.4 education in 1997, he worked in turn in decoration, camera sales, electronic products sales, until April 2015.  In June 2015 he saw a job advertised online and applied for it, resulting in a job interview at the office of World Link.  He gave a set of his address proof, graduate certificate, previous work proof to World Link.  The interviewer told him that the job was to use his own means to look for customers who wanted to borrow money.  He was hired.  He did not go to work at all.  After 3 or 5 days he called World Link and said he would not take up the job.               

54.  On 30 November 2015, the date of the alleged encounter with PW2, he was 35 years old.  He never met PW2.  He was not in the lawyer’s office.  He did not sign the contract (P4). 

55.  D2 says he used to have a haircut every month.  He cannot remember if he had his hair cut in November and December 2015.  Defence produce photos which show that D2’s hair did not reach his ear(s)  in November and December 2015 as follows:

(1) Photo D2 is said to be taken on an uncertain day in November 2015. (The hair length is not shown within the photo);

(2) Photo D3 is said to be taken at around Christmas 2015;

(3) Photo D4 was apparently taken by a mobile phone on 24 October 2015, the date displayed at the top of the screen. It was his wife’s mobile phone and is available for inspection by the prosecution. (The hair length combed to the back is not shown within the photo);

(4) Photo D5 was apparently taken by the same mobile phone on 8 November 2015, the date displayed at the top of the screen. (The hair length is blocked by his left shoulder on the photo);

(5) Photo D6 is the same photo as Photo D4 sent out by his wife on facebook;

(6) Photo D7 is a photo sent out by his wife on facebook on 17 November 2015. He says it was taken on the same date. (The hair length combed to the right side is not shown within the photo).

This Court’s findings

56.  I have considered the parties’ closing submissions. 

As Regards 1^st Charge, Whether D1 was the “Kenny” whom PW1 saw at World Link on 21 and 29 July 2015?

57.  On 21 July 2015, PW1 arrived at World Link.  The receptionist led him to Room E.  Inside was Kenny.  Kenny was a bit chubby, wearing glasses and about 30.  PW1 sat down at the desk opposite Kenny.  He was 3 feet away from Kenny. This meeting lasted 30 – 45 minutes.  On 29 July 2015, inside Room E he further processed with Kenny, who was sitting across the desk from him.  This meeting lasted about 45 minutes.  He had seen Kenny on two occasions. 

58.  D1’s counsel submits in closing (para. 11)  that it is difficult to be mistaken about someone’s height where the difference is 18 cm.  The prosecution’s submission in closing (paras. 10 and 11)  is that D1 was only standing for about 10 seconds in PW1’s presence.  Most of the time D1 was seated.  PW1 says he did not pay much attention to D1’s height.  He recalled D1’s face but was not too sure about his height.  I accept that PW1’s estimate was based on a 10-second inattentive observation.  I agree with the prosecution’s submission that the difference was not so significant in the circumstances.  PW1 could recall D1’s face in the identification parade on 14 February 2017.  He did not identify D1 based on D1’s height.  PW1 had a clear, unobstructed, close observation of D1’s face on both occasions D1 served PW1. 

59.  There is a lapse of 19 months between the meetings in July 2015 and the identification parade in February 2017.  It is possible for a witness to misidentify a person as memory fades over time.  I bear this in mind but I am satisfied that PW1 had correctly identified D1 as the “Kenny” he had met.

As Regards 2^nd Charge, Whether D1 was the “Choy” whom PW2 saw at World Link on 25 November 2015?

60.  On 25 November 2015 PW2 went to the office of World Link and met Choy in a room seated at about 3 feet opposite from him across the table.  He was served by Choy for about half an hour.  This was the only occasion he had seen Choy until the identification parade on 14 February 2017 in which he picked out D1 as Choy.  All participants were seated.  

61.  D1’s counsel submits in closing (para. 32)  that D1 was 1.82 m tall and PW2 was 1.68 m tall.  PW2 might have seen another man, Choy, who was 1.7 m at World Link instead of D1, who was 1.82 m.  There were sufficient opportunities to observe Choy’s height.  I do not agree that PW2 had sufficient opportunities to observe the height of Choy as Choy was seated most of the time, except once leaving the room to photocopy the documents.   

62.  Counsel also submits in closing (para. 31)  that in cross-examination PW2 agrees that in his witness statements, including the last one which was given after his identification parade, whilst he described D1 as of “medium build”, he did not describe D1 in addition as “a bit strong” but he says in court that D1 was “a bit strong”.  It is therefore possible that D1 being “a bit strong” may be a result of PW2’s subsequent observation of D1 when PW2 is in court.  I do not agree with this submission as there is no evidence that PW2 picked out D1 in the identification parade based on this additional feature.  

63.  Counsel further submits in closing (para. 34)  that when PW2 met Choy at World Link, Choy was wearing glasses but in the identification parade on 14 February 2017 the participants were instructed to wear no glasses.  Therefore PW2’s identification of D1 without glasses therein is unreliable.  I do not agree with this submission.  Some people may have a very different outlook between wearing glasses and not wearing glasses whereas some others may have very similar outlook whether with or without glasses.  It differs between individual people.  There is no basis to suggest that D1’s outlook has become very different when not wearing glasses or that PW2 had to depend on D1’s glasses to identify D1.    

64.  There is a lapse of 15 months between the meeting in November 2015 and the identification parade in February 2017.  It is possible for a witness to misidentify a person as memory fades over time.  I bear this in mind but I am satisfied that PW2 had correctly identified D1 as the “Choy” he had met.

As Regards 2^nd Charge, Whether D2 was that “Tang” whom PW2 saw at Lawyer Wong’s office on 30 November 2015?

65.  On 30 November 2015 one Mr. Lee took him to Wong Ka Hing solicitors’ firm was.  Mr. Lee entered its conference room with him.  Already inside was a male, who looked twentyish, short and thin, sitting at the table.  According to PW2’s sketch drawn in court (P14), that male sat at the table opposite from PW2, at about 4 feet away.  Mr. Lee sat at the left-hand side of the table, about 8 feet away, also opposite from PW2.  They did not have to wait long until Lawyer Wong entered the room.  Lawyer Wong remained standing throughout at the right-hand side of the table, about 6 feet away, also opposite from PW2.  Tang was between Mr. Lee and Lawyer Wong.  Lawyer Wong placed the documents on the table and explained the terms of the contract between PW2 and World Link.

66.  Lawyer Wong announced that Tang seated there was from World Link representing World Link to sign.  Then Lawyer Wong asked PW2 and Tang to sign the contract in 3 originals, which they did.  After that, Lawyer Wong also signed (P4).  Then PW2 placed the bag containing $1,800,000 cash on the table and pushed it across the table as Tang representing World Link and Lawyer Wong were on the other side of the table.  PW2 then left at the same time as Tang. They took the same lift down and then separated.

67.  PW2 estimates that the duration from entering the office to leaving the office was 20 minutes.  He mostly looked at Lawyer Wong explaining the terms of the contract.  He did not make special effort to remember Tang’s face.   

68.  In the identification parade on 19 April 2017 PW2 identified D2 as the “Tang” he had met.  

69.  D2’s counsel submits in closing (para. 8)  that PW2’s identification is unreliable as follows: 

(i) PW2 had only met the signatory of the contract [Tang] once;

(ii)  PW2 admitted that at the time of the meeting he was focusing on Lawyer Wong not on Tang and as such the actual time he would have observed Tang would be rather short;

(iii) The meeting took place 18 months before the identification parade was held and PW2 could only say “I still had a bit of memory after 10 odd months”;

(iv) PW2 took over three minutes to pick out D2 from the identification parade;

(v) PW2 said that during the identification parade “He [D2] was not directly opposite me, I only saw bits of his side… and the gesture and pose he was sitting, had looks like that person”. He went on to say “Also their face looks similar”;

(vi) At the time of meeting Tang, there were others in the room. PW2 did not speak to Tang and PW2 had no particular reason to remember him;

(vii) In cross-examination PW2 agreed that he did not have a strong impression of Tang;

(viii) PW2 described Tang as aged around 25, but at the time D2 was aged 35;

(ix) PW2 described Tang as having long hair, which he later explained meant covering the ears. Photographs produced show that although his hair may have been able to reach below the eyes at the front, his hair was not capable of covering his ears. It was not even suggested that D2’s hair could cover his ears and PW2 said that the man in the photographs did not have what he would describe as long hair.

(x) In re-examination, when asked why he could be sure D2 was the signatory he could only say “Because I only went to identify him after one year and “I still had an impression.”

70.  I consider the issue of whether Tang had long hair.  PW2 says it covered his ear(s).  Defence propose to show by photos (D2 – D7)  that D2’s hair did not reach his ear(s)  in November and December 2015, so that Tang with hair covering the ear(s)  cannot have been D2.  I have considered the photos carefully.  While Photos D2, D4, D5, D6, D7 do not show the hair length within the photos, Photo D3 was taken at around Christmas 2015, weeks after the meeting of 30 November 2015.  D2 says he used to have a haircut every month but he cannot remember if he had a haircut in November and December 2015.  Therefore I do not think Photos D2 – D7 can usefully indicate how long D2’s hair was (i.e. its full length)  on about the date of the meeting.  These photos do not assist the defence in this proposition.

71.  I consider the issue of whether Tang, who PW2 says looked like 25, was D2. D2 was actually 35 years old on the date of the meeting.  I agree with prosecution counsel that D2 in court looks much younger than his age.  From the photos (D2 – D5), I can also see that D2 looked twentyish. 

72.  I consider how the number of encounter may be relevant to the quality of observation.  I think it alone is not conclusive of the quality.  The quality has to depend on the circumstances of his observation.  PW2 admits that he mostly looked at Lawyer Wong explaining the contract to him and Tang.  He had not stared at Tang or made special efforts to remember Tang’s face and the impression was not strong.  I reckon that excluding the time he spent on Lawyer Wong from the 20 minutes he had from arrival to departure, he still had other opportunities observing Tang.  He observed Tang before Lawyer Wong entered, when Tang was signing the 3 sets of original contract, when he pushed the bag of money across the table, and when he left in the same lift with Tang.  They were just 4 feet apart, unobstructed in view, when seated face to face.  I give myself the warning that an honest witness is capable of making mistakes in his identification of the culprit particularly when the observation did not last very long according to the case of R v Turnbull [1977] QB 224. 

73.  In cross-examination, he agrees with D2’s counsel that he had made no special efforts to remember Tang’s face.  However, I do not think that to be able to identify a face, a witness has to make a particular effort.  I regard particular efforts rather as reconstruction, which is unreliable.  He admits, though, that at the meeting he had not stared at Tang, he had not made special efforts to remember Tang’s face, and the impression was not very strong.  But he still had an impression of Tang in the identification parade.  Among the seated participants, he saw D2’s gesture and pose of sitting, and also D2’s look, similar to Tang.  When he identified Tang he was sure it was the same person.  In re-examination he explains that he was sure he correctly identified Tang because despite the lapse of one year odd, he still had the impression of Tang. 

74.  There was a lapse of 17 months between the meeting in November 2015 and the identification parade in April 2017.  I understand a witness may misidentify a person based on memory over the course of time.              

75.  PW2 took over 3 minutes[8] to pick out D2 from the identification parade.  The admitted facts state that it was a proper identification parade.  It necessarily means the parade comprised participants of similar appearance.  I do not find such time taken by a witness unusual to suggest anything gone wrong.             

76.  Eventually I am satisfied that PW2 had correctly identified D2 as the “Tang” he had met. 

Credibility and reliability of D1’s evidence

77.  Given D1’s clear record, when considering his credibility and his propensity to commit the present offence, I have to take a view more favourable to him. 

78.  He gives an account of how he came to be at World Link’s office on 26 November 2015.  Prosecution counsel submits in closing (para. 51)  that his explanation of waiting in World Link but not getting a table for both in the restaurant at a busy lunch hour, (para. 52)  that his not waiting at the sofa in the reception area instead of inside a room, (paras. 53 and 54)  that his being given the access code and allowed free access to and roam about in World Link even when no staff were present, are all incredible.  Prosecution counsel also queries (para. 55)  that why a person having nothing to do with World Link like him would open the door when the doorbell rang.  I agree with these observations.   I do not find him a credible witness.  

Credibility and reliability of D2’s evidence

79.  Given D2’s clear record, when considering his credibility and his propensity to commit the present offence, I have to take a view more favourable to him.

80.  He gives an account of how he attended a job interview after seeing an advertisement online for a financial staff position in World Link.  He had no financial experience or relevant qualifications.  He did not know what he was to do except being told to find by his own means people who want to borrow money.  The prosecution submits in closing (para. 42)  that such version of events is strange.  I do not find him a credible witness. 

Credibility and reliability of prosecution witness’s evidence

81.  It is the defence case that D1 and D2 had never met PW1 and/or PW2 or had any dealings with them.   There is no suggestion that PW1 and PW2 frame up D1 and/or D2.  There only remains the reliability of PW1’s and PW2’s evidence to be considered.  I find PW1 and PW2 to be credible and reliable witnesses.

82.  There is also the evidence of DPC 5271 (PW4)  the exhibit officer, who found and seized the Notebook (P7)  and pay slips (P17)  among other items at World Link office on 30 November 2015, and of DSPC 7176 (PW5)  who first entered World Link office on 30 November 2015 in execution of the search warrant and arrested D1.  Their evidence is not disputed by the defence.     

Significance of the Pay Slips found at World Link on 30 November 2015?

83.  On 30 November 2015 a stack of pay slips, 26 pages were seized from the receptionist drawer at World Link (P17).  On the face of it, each pertains to an employee being paid cash of a few thousand dollars for the payroll period of 1 July 2015 to 31 July 2015.  D2’s name with his HKID number is among them. There are names such as “Lee Yan Sze” and “Yuen Lun Shu” but there is no evidence linking these two names to Mr. Lee and Ms. Yuen, two of the alleged fraudsters.  There were also no names such as Kenny Cheung, KC Choy, Tang Hoi Yuen William, Law Ho Chun (“Naka”), Ryan Chan, or Choy Kam Kuen (D1’s name). 

84.  I consider the circumstances where P17 was found.  There were no payslips for other months except July 2015.  It was a loose stack.  At the bottom of each page where “Employer Signature & Chop” were printed, there was just the company chop being affixed but no signature.  I cannot see how P17 qualifies as a prima facie complete or official record to be admissible for its truth, and, if assumingly admissible, for its weight. 

Significance of the Notebook found at World Link on 30 November 2015?

85.  The prosecution in closing (para. 48)  submits that the Notebook (P7)  found in Room B at World Link are clearly speaking notes.  The caller is to pretend they are from banks including Bank of China (as 1^st Charge)  and OCBC Wing Hang Bank (as in 2^nd Charge).  The callers are to offer very low interest loans, including mortgage loans.  The customers are to be told that they can settle their existing loans with new low interest loans. The callers are advised what to say if the customer is suspicious. 

86.  Defence counsel for either D1 or D2 does not dispute such interpretation of the contents.  I agree with the prosecution’s submission. 

Different style of signatures of Tang Hoi Yuen William

87.  D2’s counsel comments in closing (para. 19)  on the different styles of signature of Tang Hoi Yuen William appearing on the respective contracts relating to PW2 and PW3 (another borrower receiving cold call from World Link).  I understand that depending on the circumstances, whether innocent or not, a person may elect to sign in a different style on a particular document. I do not see how a different style of signature advances the defence here.    

Checking of Tang’s identity before signing the contract

88.  D2’s counsel submits in closing (para. 13)  that Lawyer Wong as a solicitor would have been duty bound to inspect the identity card of Tang and the prosecution fail to call Lawyer Wong and Tang Hoi Yuen William to prove the inspection was not done.  Therefore Tang Hoi Yuen William must not have been D1.  I can see no evidence that Lawyer Wong was in fact a lawyer, and besides, that he, alternatively someone on his behalf, had checked the identity card of Tang.  The prosecution have no duty to prove the true identity of Lawyer Wong and Tang Hoi Yuen William.           

Whether D1 was in Joint Enterprise with others to defraud PW1 in 1^st charge?

89.  His accomplice made the cold call to pretend to offer a prospect for a favourable loan to PW1.  D1 first met with PW1 to pretend to process the loan for PW1.  He called PW1 to go to M Success to borrow money.  He met PW1 again, this time to take PW1’s money allegedly for further processing of the loan. 

Whether D1 and D2 were in Joint Enterprise with others to defraud PW2 in 2^nd charge?

90.  D2’s counsel submits in closing (para. 15)  that D2 did not say anything or in any way take an active part in the meeting and the only evidence that D2 was aware of any fraud was that he signed with a name which was not his own.  I note from the evidence that someone made the cold call to pretend to offer a prospect for a favourable loan to PW2.  Following up on the cold call, D1 in turn met with PW2 to pretend to process the loan for PW1.  Following up on D1’s meeting, someone in turn brought PW2 to borrow money.  Following up on money thus borrowed, D2 in turn met with PW2 at Lawyer Wong office to sign contract for World Link and receive the money from PW2, allegedly for further processing of the loan by World Link.  I accept PW2’s case that Tang had signed on the contract after Lawyer Wong’s introduction of D2 as World Link’s representative and explanation of the terms of the contract to D2 and PW2.  The irresistible inference is that D2, as much as D1, was a knowing participant to World Link’s fraud on PW2.   

Conclusion

91.  I am satisfied beyond reasonable doubt that the prosecution have proved all ingredients of the offence against D1 in 1^st Charge.  D1 is convicted as charged.

92.  I am also satisfied beyond reasonable doubt that the prosecution have proved all ingredients of the offence against D1 and D2 in 2^nd Charge.  D1 and D2 are convicted as charged.